BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE)...

(J)MA No.17/2015 of 15 In Appln. No.61/2014.(WZ)

BEFORE THE NATIONAL GREEN TRIBUNAL

(WESTERN ZONE) BENCH, PUNE

MISC. APPLICATION NO.17 OF 2015

APPLICATION NO.61 OF 2014 (WZ)

CORAM :

HON’BLE SHRI JUSTICE V.R. KINGAONKAR (JUDICIAL MEMBER) HON’BLE DR. AJAY A.DESHPANDE (EXPERT MEMBER)

In The Matter of:

CAVELOSSIM VILLAGERS FORUM

A Society registered under the Societies Act, 1860,

Bearing Registration No.196/Goa/2013,

H.No.314/L IBR-Plaza,

Patecantem, Cavelossim,

Salcete- Goa- 403731.

Through its President,

Mr. Iris Passanha, r/o H.No.314/L,

Patremcantem, Cavelossim, Salcete, Goa.

APPLICANT

VERSUS

1. VILLAGE PANCHAYAT OF CAVELOSSIM,

Cavelossim, Salcete, Goa.

2. SENIOR TOWN PLANNER,

Town and Country Planning Department,

South Goa District office,


Margao, Goa.

3. THE COLLECTOR,

South Goa District,

Margao Goa.

4. ASSISTANT ENGINEER,

SUB DIVISION, Sub-Division-I,

Works Div-II,

Water Resource Department,

Gogol, Margao, Goa.

5. GOA COASTAL ZONE MANAGEMENT AUTHORITY,

C/o Department of Science, Technology &

Environment, Government of Goa,

3rd Floor, Dempo Towers,

Patto, Panaji-Goa.

6. CHAIRMAN,

Goa State Pollution Control Board,

1st Floor, Dempo Towers, Patto,

Panaji Goa.

7. CHAIRPERSON,

Goa State Biodiversity Board,

C/o Department of Science, Technology &

Environment, Opp. Saligao Seminary, Saligao

Bardez, Goa-403511.

8. M/S SHREE BALAJI CONCEPTS,

A Partnership Firm,

having its Registered office at Kadar Manzil,

1st Floor, Margao Goa-403601.

………RESPONDENTS

AND:

M/S SHREE BALAJI CONEPTS A Partner Firm, Having its registered office at Kadar Manzil, 1st Floor, Margao, Goa-403601.

(In MISC. APPLICATION No.17/2015)

APPLICANT


Counsel for Applicant(s):

Mr. Nigel De Casta Frisis Advocate a/w Mr. Iris Passanha for

Jidith A.B.Almeida.

Counsel for Respondent(s):

Mr. Amit Phadte Advocate for Respondent No.1.

Mr. Dattaprasad Lawande a/w F.M.Mesquita, Mr. Nikhil Pai

Advocates for Respondent Nos.2 to 7.

Mr. Ninad Laud a/w Mr Nitin Swant, Mr. Sanjay

Malkarnekar Mr F.B.Bhaangi, Mr Rahul Garg, Mr Makarand

Rodge, Advocates for Respondent No.8.

1. This is an Application filed by the Original

Respondent No.8, (Project Proponent), raising

objection to maintainability of main Application No.61

of 2014, on the ground that the same is barred by

limitation. The bar of limitation is pleaded on the

ground of maintainability of the main application, in

view of the provisions of Sub-section (i) and (iii) of

section 14 of the National Green Tribunal Act, 2010.

2. Cavelossim Village Forum, the Original

Applicant, claims to be a registered society.

Date : April 8th, 2015

JUDGMENT


Undisputedly, the Respondent No. 8 M/s Shree Balaji

Concepts, has proposed development /construction in

lands Survey Nos.9/11,91/5,91/6 and 91/8, of village

Cavelossim, Tal. Salcete State of Goa. According to the

Original Applicant, the project of Respondent No.8,

would knock cause to water bodies, fishing ponds,

channels and Nullahs and therefore, a complaint was

made to the authorities. An inspection was carried out

on 11.2.2014, which clearly revealed such illegalities.

Though the authorities gave directions to the

Respondent No.8, to stop work, yet there was no

compliance by the Respondent No.8. Therefore,

continuation of project activity by the Respondent

No.8, is causing diversion of natural channels of water

in total violation of legal provisions of the Goa

Irrigation Act, 1993, as well as Ses.24 and 25 of the

Water (Prevention & Control of Pollution) Act, 1974.

The site in question falls within NDZ area. The

construction activities were found to be carried out by

reclaiming the area in violation of CRZ Notifications. A

report of Coastal Zone Management Authority (CZMA),

dated 24th June, 2014, comprises this fact. So also, the

Goa Agricultural department and the Goa state

Diversity Board, noted that due to filling of soil and

reclamation of land, environment was being


endangered due to loss of natural biodiversity. There

were several such illegalities committed by the

Respondent No.8, (M/s Shree Balaji Concepts), which

gave cause of action when serious environmental

degradation came to the notice by the Original

Applicant during inspection dated 18.12.2013,

conducted by the Village Panchayat of Cavelossim.

Consequently, the Original Applicant filed an

Application for restoration of damaged properties and

to settle the dispute regarding environmental issues

involved in the dispute, which arose out of

implementation of enactment specified in the

Schedule-I, of the National Green Tribunal Act, 2010.

3. In the meanwhile, the proceedings were stayed

by the Hon’ble High Court of Bombay at Goa, in the

Writ Petition No.450 of 2014. This Tribunal, however,

passed an order dated 7th January, 2015, which

restricted the Original Applicant to agitate only

environmental issues by way of amendment

Application, deleting Municipal issues, which were not

covered as indicated in the earlier order of December

10, 2014. The Hon’ble Division Bench disposed of the

Writ Petition No.450 of 2014, holding that the issues

related to those, which come within purview of


Schedule-I, of the NGT Act, 2010, can be dealt with by

this Tribunal. All contentions of the Petitioners therein

on merits were kept open. The issue regarding

limitation also was kept open. The interim order was

vacated and the Writ Petition was disposed of.

4. It is in the above backdrop that instant

Application is filed by the Original Respondent No.8

M/s Shree Balaji Concepts.

5. Briefly stated, the construction licence was

issued on 18.6.2010 and the construction activity was

commenced in December, 2010. Therefore, ‘cause of

action’ arose for the first time in December, 2010. The

Original Applicant made complaint about alleged

illegalities in the construction to the Village Panchayat

along with copy of letter of Block Development Officer

(BDO) dated 2.9.2013, with a request for inspection of

site. Obviously, in any case, the Original Applicant

gained knowledge about illegal construction activity on

or before 2nd September, 2013. Upon plain reading of

Section 14(1) read with Section 14 (3), of the NGT Act,

2010, it is manifest that such Application cannot be

filed beyond period of six (6) months from the date of

cause of action for such dispute and the explain the

period under Sub-clause (3) can be granted only up to


sixty (60) days, if ‘sufficient cause’ is shown by the

Applicant. According to the Original Respondent No.8

(M/s Shree Balaji Concepts), even if the limitation

period is compounded from 2.9.2013, being the date of

knowledge when the complaint was made to the Village

Panchayat, and BDO by the Original Applicant,

regarding so called illegal construction activities, yet,

in terms of Section 14(3), maximum limitation period

shall be over on or before 2nd March, 2014. The filing

of instant Application on 27th May, 2014, is totally

barred by limitation and, therefore, the Application is

liable to be dismissed.

6. By filing affidavit in reply on behalf of the

Original Applicant, for reasons that the developer (M/s

Shree Balaji Concepts), has not complied with the

order dated 20th May, 2014, passed by this Tribunal,

whereby direction was issued to furnish undertaking

that in case the Application is allowed the construction

will be dismantled by the developer within two (2)

weeks at its own cost. According to the Original

Applicant, there was no confirmed knowledge

regarding filling of water bodies unless inspection was

done by the Village Panchayat on 18.12.2013 and,

therefore, the Application could not be filed till a letter


dated 26th February, 2014, was received from Village

Panchayat. The Applicant alleges that mere knowledge

of some construction activity going on at the site by

itself, does not give rise to cause of action, but

knowledge regarding violation of Environmental loss in

order to raise the dispute under Section 14(1) of the

NGT Act, is starting point which would trigger

limitation for filing of such Application, which shall be

taken into account as 24th June, 2014 or 11.2.2014,

in view of pleadings and, therefore, the Application is

within period of six months from such date. The

Original Applicant, therefore, sought dismissal of the

objection-petition i.e. M.A No.17 of 2015.

7. It may be stated that the objection petitioner

filed rejoinder and the Members of Village Panchayat

supported case of developer (M/s Shree Balaji

Concepts).

8. We have heard learned Advocates for the

contesting parties. We have considered the main

objection raised by M/s Shree Balaji Concepts

(developer) and response of Original Applicant.

9. On behalf of M/s Shree Balaji Concepts, it is

argued by learned Advocate Mr. Ninad Laud that the

Original Applicant did not reproduce facts regarding


disposal of earlier Writ Petition by the Hon’ble High

Court with oblique intention. It is further argued that

when the Applicant made complaint to Village

Panchayat and BDO, on 2nd September, 2013, then the

Applicant was well aware about nature of construction

activities and could have gathered information

regarding alleged degradation of environment. It is

further argued that the inspection carried out by the

BDO on 30th September, 2013, was intimated to the

Original Applicant and assuming that it triggered

cause of action, then also the Application is barred by

limitation, inasmuch as it is not filed within six (6)

months, from the said date. It is contended that after

period of six (6) months, the Original Applicant cannot

claim extension of time by way of right unless and until

it is shown that he was prevented due to ‘sufficient

cause’ from filing of the Application, within timeframe

indicated in Sub-clause (1) of Section 14 of the NGT

Act, 2010. Consequently, looked from any angle, the

Application for so called degradation of environment,

is barred by limitation. It is further argued that in

December, 2013, construction activity had started,

which the Applicant admittedly noticed in January,

2014. Therefore, it was expected that within six (6)

months, he should have filed the Application. However,


‘something was amiss’ which had caused

environmental degradation. It is pointed out that wife

of the President of Applicant-forum, is one of the

Member of Village Panchayat and, therefore, her

knowledge could be shared by the Applicant without

difficulty. Under the circumstances, the Application is

hopelessly barred by limitation and is liable to be

dismissed by this Tribunal, upholding the objections.

10. Countering above arguments, learned Counsel

for the Original Applicant submitted that knowledge of

construction activity by itself cannot give cause to the

Applicant to raise dispute under Sub-cause (1) of

Section 14, unless and until there is existence of

‘substantial environmental dispute’. He argued that

unless existence of such ‘substantial environmental

dispute’ was found in reality, there was no point in

filing the Application. Therefore, proper verification

through the authorities was essential. He contended

that the Applicant got confirmed the fact regarding

violation when the inspections were conducted by BDO

and other authorities. Perusal of the record shows that

on 18th December, 2013, the Village Panchayat

Secretary, found road was constructed by M/s Shree

Balaji Concepts, without CRZ approval and was,


therefore, illegal activity. It was also found that rain

water drained had flowed and diverted without any

approval from the concerned authority. What appears

from the record is that the Applicant sought

information under the R.T.I. by filing an Application

dated 29th April, 2014. He received information dated

30th April, 2014. The information showed that there

was no Application filed by M/s Shree Balaji Concepts

to change natural course of the water channels. It is

important to note that by order dated 21st March,

2014, a report was issued by the Assistant Engineer to

show the construction work was being carried out

vicariously by changing natural course of water. The

Assistant Engineer, therefore, issued communication

dated 18.2.2014, to M/s Shree Balaji Concepts to stop

the work of construction activities within fifteen (15)

days, because original water bodies were found being

destructed. Thus, construction activity of M/s Shree

Balaji Concepts have been started in 2010, but when

it took ugly turn of changing natural course of water

flow, stagnation of water in the body fields and off

spring sites, which endangered environment, then only

the Applicant could say that there was ‘substantial

environmental dispute’ which could be raised by filing

Application under Section 14(1) of the NGT Act, 2010.


11. We may pin-point here that mere violation of

Municipal Laws or some minor Laws caused like

destruction of a small pitch of about 2x2ft of grass due

to a large scale project, may not be treated as

‘substantial environmental dispute’. The principle De

Minmis Non Curat Lex would be attracted in such cases

and therefore, probably the Legislature purposely used

the expression ‘substantial environmental dispute’ in

relation to Sub-clause (i) of Section 14 of the NGT Act,

2010. If such interpretation is taken into account,

conduct of the Applicant can be well understood.

Obviously, it can be said that ‘substantial

environmental dispute’ could be raised by him after

due verification of the facts which he got verification

along with R.T.I information received at the fag-end of

February, 2014 and further confirmed in the last week

of June,2014. So, even assuming that ‘cause of action’

triggered on inspection of 11.2.2014, on basis of site

inspection conducted by the Water Resources

Department and frequent violation of the Irrigation

Laws by diverting natural course water channel was

noticed by the authorities. The Application falls within

period of six (6) months. For, first ‘cause of action’ to

raise such ‘substantial environmental dispute’ could

arose only had identified on 27.5.2014, or 11.2.2014,


when the channel of natural water course (course of

stop of water) was noticed by the authority of

Applicant, as a result of construction activities of M/s

Shree Balaji Concepts. It need not be reiterated that

concerned authorities issued stop-work order to M/s

Shree Balaji Concepts, immediately after noticing that

work had caused change in the natural course of water

flow. Violation of conditions in the permission granted

to M/s Shree Balaji Concepts by the authorities may

be Village Panchayat or CRZ authority, also gave

‘cause of action’ to commence such a dispute.

12. Much reliance is placed on the case of

‘Aradhana Bhargav vs MoEF’ 2013 SCC on line, NGT,

84. A part of observations in the said Judgment is

extensively collected in the Application. So also,

reliance is placed on ‘Kehar Singh vs State of Haryana’

2013, SCC on line NGT 52, and ‘Vidhan Mishra vs

Union of India’ 2013, SCC OnLine NGT 429 and Oswal

Fabs and ICC Ltd vs Common (Admn) 2010 SCC on line

728. In Aradhana Bhargav vs MoEF, the Co-ordinate

Bench of this Tribunal, observed that “concept of

continuing cause of action is outside pale of the NGT

Act.” It is pointed out that concept of ‘continuing cause

of action’, is foreign expression to the provisions of


statute of Limitation engrafted under Section 14(3) of

the NGT Act. So also, in Kehar Singh, it is held that

“Tribunal will have no jurisdiction to condon the delay

beyond period of sixty (60) days after expiry of such

period”. There cannot be any dispute about legal

opinion that the NGT Act, is a special enactment and,

therefore, general provisions of the Limitation Act,

1963, will not be applicable to the special provision of

limitation provided under the former Act. Only

question is whether as to when would first time ‘cause

of action’ can be counted? And can be regarded as have

arisen. In Application No.13 of 2014 (MA No.65/2014)

Amit Maru Vs Secretary, MoEF and Ors, this Tribunal

held that “the limitation will commence from first date

of arising of cause of action for ‘such dispute’. The

expression ‘such dispute’ relates to the dispute

pertaining to breach of conditions of permission

granted for development in the lands, stop work order

and diversion of water channels”. In our view, such a

dispute arose in the fag-end of February, 2014 and,

therefore, the Application is well within time, as it is

filed within limitation, as it is filed in on 275.2014, and

at the fag-end. Therefore, it is well within time because

it is filed within period of six (6) months there from.


13. Under the above circumstances, objection

raised by the Original Respondent No.8, (M/s Shree

Balaji Concepts), is without any substance and is

dismissed. The office to verify whether undertaking is

given by M/s Shree Balaji Concepts, as per earlier

order dated 28th May, 2014, and if it is not given, then

defence of M/s Shree Balaji Concepts, shall not be

allowed in any manner. Misc. Application is,

accordingly, disposed of and the Main Application to

proceed and be scheduled on 23rd April, 2015.

..……………………………………………, JM

(Justice V. R. Kingaonkar)

….…………………………………………, EM (Dr.Ajay A. Deshpande)

Date: April 8th, 2015.

khk

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